Rappaport on Liberal and Libertarian “Nonoriginalism”

August 1st, 2013

Mike Rappaport has an interesting series of posts that looks at how liberals and libertarians apply originalism. Mike calls it “Nonoriginalism.” Mike calls out many originalists as “not originalist.”

From his post about “Liberal Nonoriginalism“:

This has gotten me thinking a bit about the methodology of activist liberal nonoriginalism.

What is striking about this approach is how much of an overlap there is between a person’s political views and his views on the meaning of the Constitution.   This overlap is so strong that might wonder whether the content of constitutional law under this approach is simply one’s political views.

First, the constitutional text might seem like a constraint, and in some cases (such as the Senate containing two Senators from each state) it does constrain.  But, as anyone trained in these matters knows, one can derive a great many meanings from the words of the Constitution, especially if one accepts relatively loose derivations, as do practitioners of this approach. 

Second,  precedent might seem like a constraint, but in the main it is not all that constraining. Precedents which further the person’s political views are accepted and read broadly.  Precedents which constrain or block one’s political views are read narrowly or thought to require being reversed.  Supreme Court precedent doctrine, moreover, is relaxed enough that the Justices can usually overturn (and if not distinguish) cases they disagree with.

From his followup post titled “Libertarian Nonoriginalism.”

These days my sense is that the dominant position among libertarians is to be originalist and to believe that the original meaning of the Constitution is a very libertarian document (although not a perfectly libertarian one). Randy Barnett is probably the leading person holding this view.

At times, this approach seemed like it was being faithful to the original Constitution. But ultimately it was not. It was not looking at particular clauses or to the original meaning of the constitutional language.

In the end, this type of libertarian nonoriginalism had a different feel that the activist liberal nonoriginalism. It was backward looking and had more historical support. It was certainly more congenial to my (moderate libertarian) political views. But while I would say that libertarian nonoriginalism was more originalist than activist liberal nonoriginalism, it was still not originalist.

I think this is something of a provocative claim, and I’m surprised it hasn’t got more attention.

In a few works, I have critiqued the originalist methodology of Jack Balkin and Steve Calabresi, and questioned how wide the originalism tent is. Mike seems to have gone to the next step, and labelled alternate originalist methodologies as not originalist at all–“nonoriginalist” in his words. As if to say there is only one originalism.

I suspect Jack Balkin, a newfound originalist, and Randy Barnett, would take exception here.